[1] exceptional conditions where the court's duty to resume pleadings is acknowledged

[2] The relationship between the court's duty to resume pleadings and the court's right to attack and defend the deadline

[3] The case holding that in a case where an application for resumption of pleading was filed in order to submit the assertion and certification after the closing of pleading even though the opportunity to submit the assertion and certification was sufficiently available before the closing of pleading, the pleading cannot be deemed as having a duty to resume the pleading solely on the ground that the assertion and certification is a fact requiring proof that the conclusion of the claim can be determined, or that there is a possibility that the above assertion and certification may not be dismissed as a means of attack and defense on the date when the pleading is resumed and continued after the closing of pleading, unless there is a duty to explain the argument

[1] In principle, the issue of whether to accept an application for resumption of oral argument when the parties filed an application for resumption of oral argument to submit arguments and evidence after the closing of oral argument belongs to the court’s discretion. However, the court has a duty to resume oral argument and continue the hearing in case where the parties concerned breached the duty of explanation or intellectual duty on matters in fact or in law and the parties concerned filed an application for resumption of oral argument to submit arguments and evidence is found to have violated the procedural justice pursued by the Civil Procedure Act, such as where the parties concerned were unable to have the opportunity to submit arguments and evidence due to the difficult circumstances prior to the closing of oral argument, and where the subject of the argument and certification falls under the objective facts requiring proof that can determine the outcome of the judgment, etc., and where rendering a judgment against the parties concerned without granting the opportunity to submit arguments and evidence, the court has the duty to resume the oral argument and continue the hearing in order to remedy the unlawful acts in the litigation procedure and to resume the hearing in a proper and fair manner.

[2] The court’s assumption that the pleading will be resumed even if there is no obligation to resume the pleading due to the lack of exceptional requirements, etc. for which the pleading has the obligation to resume the pleading, and then, the court cannot be deemed to have the obligation to resume the pleading solely on the ground that, in the event a new argument or proof is submitted on the date of the pleading which is domestically resumed, the submission of a new argument or proof is unlikely to be dismissed by the means of the real-time attack and defense. However, in fact, in a case where the court accepted the application for the resumption of pleading by the parties, and where the pleading is resumed, the litigation relationship shall be returned to the state before the resumption of the pleading. Thus, in determining whether the allegation or certification submitted on the date of pleading falls under the means of the real-time attack and defense, the delay in the completion of the suit

[3] In a case where the Plaintiff failed to submit a sufficient opportunity to assert and prove that the extinctive prescription of the claim for indemnity was suspended from the first instance court to the original trial after remanding, and the Plaintiff filed an application for resumption of pleadings to submit its assertion and proof after the closing of argument after remanding the case holding that the court below cannot be deemed to have a duty to resume the pleadings solely on the ground that there is a possibility of not being dismissed by the means of an attack and defense during the real-time period, unless there is a duty to explain whether the extinctive prescription has been interrupted or not, or that there is a possibility that the said assertion and proof may not be dismissed by the means of an attack and defense on the date when the pleading is resumed after the resumption of the pleading.

[1] Article 142 of the Civil Procedure Act / [2] Articles 142 and 149(1) of the Civil Procedure Act / [3] Articles 142 and 149(1) of the Civil Procedure Act

[1] Supreme Court Decision 86Meu1230 delivered on December 8, 1987 (Gong1988, 256)

Korea Housing Guarantee Co., Ltd. (Law Firm Apex, Attorneys Park Im-soo et al., Counsel for the plaintiff-appellant)

Busan Construction Co., Ltd. and 3 others

Supreme Court Decision 2009Da32409 Decided August 20, 2009

Seoul High Court Decision 2009Na78636 decided January 14, 2010

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. As to the misapprehension of legal principles as to the violation of the duty of explanation

According to the records, the defendants' defense that the statute of limitations has expired for the claim for reimbursement of attached Form 2 in the judgment of the court below (hereinafter "claim for reimbursement of attached Form 2 of this case") was submitted from the court of first instance to the court of first instance. It is evident that the plaintiff has no defense that the statute of limitations has been interrupted from the court of first instance to the closing of argument of the court below

In the event that the plaintiff did not make a re-appeal to the interruption of extinctive prescription, the court below does not have a duty to tampling or point out by soliciting the submission of the re-appeal.

As alleged in the ground of appeal, the court below did not err by failing to exhaust all necessary deliberations due to a violation of the duty of explanation, etc.

2. As to the misapprehension of legal principles as to the resumption of pleading

A. Where a party files an application for resumption of pleading to submit arguments and evidence after the closing of argument, in principle, whether to accept the application for resumption of pleading belongs to the court’s discretion (see, e.g., Supreme Court Decisions 86Meu1230, Dec. 8, 1987; 2008Da14619, Jul. 23, 2009). However, where the party who filed the application for resumption of pleading failed to have the opportunity to submit arguments and evidence due to the reasons that it was difficult to impose liability on him/her before the closing of argument, and where the subject of the argument and certification falls under the fact requiring proof that can determine the outcome of the judgment, the court is obliged to resume the pleading and continue the hearing where the party’s application for resumption of pleading violates procedural justice pursued by the Civil Procedure Act. In addition, where the party breached his/her duty of explanation or intellectual duty on matters under law and concluded the pleading and the party’s application for resumption of the proceedings in question, the court has a duty of adequate and fair trial and to resolve the proceedings in question.

On the other hand, the issue of whether a court is obligated to resume a pleading shall be determined by whether the above exceptional requirements are met. The court assumes that the pleading will resume even though it does not have an obligation to resume a pleading on the ground that the above exceptional requirements are not met, and as such, the court cannot be deemed to have an obligation to resume a pleading solely on the ground that the submission of new arguments and certifications is unlikely to be dismissed by the actual time limit attack and defense if it is submitted on the date of a pleading resumed as above. However, where a court accepted an application for resumption of pleading by a party and accepted the application for resumption of pleading, the litigation relationship shall be restored to the state before the resumption of pleading. Thus, in determining whether the allegation and certification submitted on the date of pleading itself constitutes the means of attack and defense by the actual time limit, the delay in the completion of the suit should be determined on the basis of the fulfillment of Article 149(1) of the Civil Procedure

B. In light of the records, the Plaintiff did not submit the opportunity to assert and prove that the extinctive prescription of the claim for reimbursement of the attached Form 2 was suspended after remanding from the first instance court to the lower court. However, the Plaintiff filed an application for resumption of pleadings to submit the assertion and proof only after the closing of argument in the lower court after remanding.

As such, insofar as the Plaintiff did not submit an argument or a certificate that the extinctive prescription has been interrupted for the claim for reimbursement claim of Attached 2 in its entirety even though there was an opportunity for the Plaintiff to submit such argument or certificate, it cannot be deemed that the lower court has a duty to resume the pleading solely on such circumstance, even if it is possible for the Plaintiff to not be dismissed as a means of attack and defense against the actual time limit if the argument or certificate is submitted at the date of pleading that is resumed and continued after the pleading. Furthermore, as seen earlier, insofar as the lower court did not have a duty to explain whether to suspend the extinctive prescription for the claim for reimbursement claim of Attached 2 in this case, it cannot be deemed that the lower court has a duty to resume the pleading due to the violation of the duty to explain, etc.

Although the Plaintiff had an opportunity to re-appeal the interruption of extinctive prescription as above, the lower court determined that the submission of allegation and certification thereof after the closing of pleadings was an attack and defense method for the actual time limit, and thus, did not resume pleadings. This appears to the purport that, even though the lower court did not have an obligation to resume pleadings, if the Plaintiff accepted an application for resumption of pleadings and re-enters a lawsuit for which the closure of pleadings has already been completed, it would cause delay in the conclusion of the lawsuit, thereby not resumption of pleadings. Although the Plaintiff had an obligation to resume pleadings, it cannot be deemed that the re-appeal of extinctive prescription period to be submitted at the date of pleading falls under the means

The judgment of the court below is just and there are no errors in the misapprehension of legal principles as to the resumption of pleadings or the method of attack and defense against the actual time limit.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Nung-hwan (Presiding Justice)